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Protecting all LGBT employees with ENDA

The biggest problem with the Employment Non-Discrimination Act is that most Americans think it already exists. It is not getting nearly the attention it deserves. When discrimination based on gender, age, ability or race is illegal, we would expect discrimination based on sexual orientation or gender identity is illegal, too. To be fair, discrimination based on sexual orientation is already illegal in 21 states, and discrimination based on gender identity is illegal in 17 — we can be proud that California has had such laws in the books since 1992 and 2003, respectively.

The effects of ENDA would not apply to religious institutions, the armed forces or employees of businesses that have fewer than 15 employees. These are notable exclusions that will leave much of our community vulnerable, but it is possible that the passage of ENDA would prompt small businesses to adopt their own nondiscrimination policies. These concessions are very similar to those made for the passage of the Affordable Care Act in that although they may be detrimental to the community, including them makes the legislation more politically feasible and far more likely to pass.

ENDA is nothing new. It has been introduced in every session of Congress since 1994 except the 109th Congress (2005 to 2007), when the Republican Party held both Senate and House majorities. Despite being repeatedly introduced, 2013 is the first time passage has seemed even remotely possible, in part because of bipartisan support.

For the first time, Republican support for ENDA has shone through — 10 Republican Senators joined 52 of 53 Democrats and both Independents in passing ENDA through the Senate, 64-32, with one Democrat and three Republicans absent.

What makes this bipartisan support even more uplifting is that this 2013 bill is trans*-inclusive — iterations of the bill before the 2008 Democratic victories were restricted to protections based on sexual orientation. This is a common flaw of the so-called “gay rights movement”; we have a history of dropping the most marginalized of our own communities in hopes of incremental gains for some. In 1999, Dianne Hardy-Garcia, who was the executive director of the Lesbian Gay Rights Lobby (now Equality Texas) at the time and a Human Rights Campaign board member, led the successful effort to cut trans* people out of the James Byrd Hate Crime Bill. That bill was eventually killed in the GOP-controlled Texas Senate but passed in 2001 as a bill that protected only gay, lesbian and bisexual Texans — but was signed into law by Gov. Rick Perry. We have come a long way since this time, but high-profile groups such as the Human Rights Campaign have endorsed nontrans*-inclusive versions of ENDA in the past, as recently as 2007.

In light of these past failures, my worry is that parts of the bill that would protect trans* individuals in the workplace will be dropped to buy Republican support in the House. I sincerely hope this is not a choice we are forced to make. Republican support is indeed crucial, but the greatest irony is that Republicans who may have voted to cut food stamps, militarize comprehensive immigration reform or oppose the Affordable Care Act are the very people we need to support us. To the casual observer, these may not seem like issues that affect the queer community. On the contrary, these decisions may have bigger impact on queer and trans* folks than ENDA — we are everywhere, and every decision affects us.

While only seven of the 431 members of the House are openly queer and none are openly trans*, we can be certain that queer and trans* folks live in every single one of the 431 districts. We need them to feel safe and brave enough to call their representatives and urge them to support this version of ENDA.

This does not need to be a partisan issue. Democrats could be much better allies to our communities, and Republicans are not necessarily homophobic. ENDA has seen weak opposition, based not in facts or statistics but in animosity and the outdated notion that queer and trans* folks are mentally disturbed.

To any reader who is unsure of his or her representative’s views on ENDA, I implore you to call and ask your representative to support ENDA. Five Republican representatives from Pennsylvania, New York, New Jersey and Florida have signed on as co-sponsors. Thirteen Democrats in the House (including Californian Jim Costa from the Fresno area) have yet to sign on as co-sponsors. If all Democrats were to vote in favor, only 11 more Republicans would need to swing their votes in favor of ENDA. California itself has 15 Republican members of Congress. ENDA will not end all of our communities’ hardship, but it is a victory for civil rights within reach. We could make history after almost 20 years. But will we ask for it?